I wrote several weeks ago about the United States Supreme Court’s decision in Riley v. California. There, the Court required a search warrant issued upon probable cause prior to police conducting a search of a lawfully detained person’s smart phone. On July 11, 2014, in Commonwealth v. Stem, Pennsylvania Superior Court followed the Riley case, ruling in the same manner for any Commonwealth prosecution.

Mr. Stem filed a motion to suppress pictures found on his cellular phone. The pictures constituted the factual basis for 17 criminal charges of possession of child pornography. Factually, Stem was standing in a private residence when he was arrested and detained for an unrelated reason. Thereafter, police officer searched Mr. Stem’s smart phone incident to his arrest, but without a warrant. The officer did not secure permission. The pictures on the cell phone were not immediately apparent without having to conduct a further “search” of the cell phone. Specifically, the picture icon had to been touched and pro actively open by the officer.

This course of search conduct, typical of every time an officer touches a person’s smart phone, the court determined, constituted a warrantless search of Mr. Stem’s smart phone. On review, the Superior Court addressed the issue of whether “a police officer may search the data contained in a modern cellular telephone, referred to as a smart phone due to the computer-like capabilities, without a warrant but to incident to the lawful arrest exception to the warrant requirement under Article 1 Section 8 of the Pennsylvania Constitution.” Superior Court panel reviewed Riley and its companion case, both of which conclude that “officers must generally secure a warrant before conducting a search of a smart phone”.

After reviewing Riley line by line, the Superior Court summarily concluded that the Pennsylvania police officer’s search of Stem’s smart phone without a warrant, although incident to a lawful arrest, was unconstitutional. In Stem, the Commonwealth forwarded the exact same arguments as those posited by California in Riley, which Superior court found similarly specious.

The conclusion of this case for Pennsylvania residents is similar to those in Riley; consent to search will become the focus of any motion to suppress a warrantless search of any smart phone. Please review my website, prior blogs, and articles in the news web page to gain a better understanding of these consent issues and how to avoid them. Please call me to discuss yours or your family member’s case regarding these issues.